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Poster: yofitofu Date: Nov 28, 2009 1:08am
Forum: feature_films Subject: What is a "restoration" and is it grounds for ownership of PD materials?

I found a new site springing up which offers some very old and very rare silent era cartoons which are mostly in the PD - www.cartoonsonfilm.com. Very cool stuff indeed. What I find concerning, however, is the fine print section of the website

http://cartoonsonfilm.com/disclaimer.html

Here, the "collector" of these cartoons, Tom Stathe, seems to be saying that he has some "ownership" of the materials by virtue of having "restored" them, which seems to mean he has transferred them to DVD, maybe cleaned them up a bit....hard to tell what more. The films seem genuine and complete and unaltered, although well transferred with nice musical soundtracks (originals?) but only a film historian would know all of this for sure.

Do you think this is a legitimate claim of ownership in the works in question? On this website, Rick Prelinger has generously offered thousands of PD films to the general public without restriction, even though his archive clearly performed quality transfer work on them. This seems more in keeping with the spirit of PD than what cartoonsonline claims.

If I take an old, dirty print and transfer it to a digital format, clean off some dirt, denoise, de-interlace, change some aspect ratio and color correct it, can it be claimed that this "version" of it is uniquely mine and that I can effectively copyright it and "track" (implied: charge) for it's usage in other contexts? We know this worked for some colorized films when that was a fad, so where is the line drawn on "restoration" or "enhancement"?

Of slightly more concern is the fact that, according to the Film Superlist 1894-1939, quite a few of the titles offered on this website did have their copyrights renewed.

This aside, does anyone think this is a legitimate claim of ownership?

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Poster: cartoonsonfilm Date: Nov 28, 2009 8:59am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I must mention that I highly respect and value the work of Rick Prelinger, who is a crusader for saving forgotten and "disposable" media. He has also done a very gracious thing by making his collections accessible for free to the public.

On the other hand, though, I am not savvy to Rick's financial background and am assuming he can afford to do this. I am a one-man operation working in my home and cannot do the same, unfortunately. There is a large cost in obtaining this material, which I do out of a natural love for it, and I must deflect these costs by allowing researchers to purchase copies of the materials. As I mentioned before, I receive many thanks despite the exchange of money, and I'm still not coming out of this as a profiteer. Others who collect similar materials usually do nothing to make it accessible and I've tried to not fall into that category.

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 29, 2009 12:46am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I thought I could help everyone out by listing some of the elements of restoration and transfer of film to video or DVD can be protected by copyright.

It has been said before on this thread, if you want clarification on the rights claimed in PD film releases on offer its best to go directly to the source. The small operators are usually very accomodating to requests to use material, especially in independent low budget film projects and the like. Film collectors and archivists like this are usually a pleasant bunch of folks who love film and have been able to make a bit of a living off it. Even though there have been some very famous corporate film scrooges who have tarred the community, for most of us it is about sharing our collections. Most collectors are only asking for fair pay for work done, often at way below the "market" rate.

The copyright issues here are pretty common sense. You have to keep in mind that copyright law was written with books in mind, so the general principles are that, when you reprint a PD book, you have copyright on your typographical arrangement and pagage but not the raw unabridged text but if you edit, expand or abridge the text you own copyright on your new text. So basically the type of work Alpha Video, Mill Creek, etc does is not copyrightable. The type of work Retromedia, Blackhawk Films, etc do is.

The list isn't definitive, but it covers the most common reas that the USCO accepts as a basis for a derivative work copyright claim.

Some key things you can validly claim copyright on:
- Colorization
- Colour tinting
- Colour grading
- Composition or arrangement of musical scores
- Editing and arrangement of scenes, including: transitions, fades, rearrangement of scenes, addition of alternate, cut or extended scenes, reversal of footage processed incorrectly, replacing missing scenes with still images, etc.
- The addition of sound (or visual) effects.
- Audio commentaries
- Compilation of films or music
- New titles or subtitles (embedded or otherwise)
- Panning and scanning, significant reframing or letterboxing.
- Any original, or significantly modified pre-existing, artwork or menu designs.
- Manual digital restoration process that recreate lost portions of frames. Probably not for just removing spots but for recreating whole missing portions of frames, where the person using the process, and not the program itself, is creating the replacement portion. In other words, digital frame-by-frame repairs not automated digital processes.
- The creation of additional "b" frames to cover film to video speedup.

You can't claim:
- Blanket copyright on the original work or the original print by virtue of having created a new master. Your copyright is only on the new elements of the new master.
- The products of mechanical processes for "cleaning" the film (physically cleaning the film stock, using wet gate telecine processes, etc)
- The results of automated digital restoration processes.


This post was modified by Video-Cellar on 2009-11-29 08:46:07

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Poster: ramapith Date: Nov 29, 2009 10:46am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

"You can't claim: Blanket copyright on the original work or the original print by virtue of having created a new master."

I don't think anyone here has even considered claiming anything that silly. But I'm aware of at least one big studio having tried. Truth is stranger than fiction, Doc...

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Poster: yofitofu Date: Nov 29, 2009 11:35am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

This is extremely useful information. Thanks Cellar.

I wonder on the "b frame" issue, since that is an exact duplicate of a pre-existing frame, if this would constitute original creative work. If so, it could be a huge loophole which would allow archivists some latitude to claim copyright.

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 29, 2009 4:02pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I am unsure about the "b" frame issue also. However, I have seen it listed as a basis for a derivative work copyright claim on a registration lodged with the USCO. The things on the list are basis I have seen people claim copyright on. I suppose duplicating of existing frames would not be covered. However, creation (digital or manual) of new "in between" frames like the BBC does when restoring the 25fps kinoscopes of 50fps video. They digitally create unique "b" frames in order to remove the ghosting effect. But these are very special cases and simple duplicating of frames wouldn't apply.

There was one thing I forgot to mention, and I think it is something that has never been asked about on this forum at all. That is content encryption and content locking on dvds. It is illegal to use programs that unlock encrypted discs (DVD shrink, etc). So, if a PD content publsiher has released a film on DVD and that DVD is encrypted with a copy protection mechanism, copying can become a violation of the DMCA provisions (anti-circumvention). This is how studios commonly protect the restored/official PD work they release.

Encryption is not a basis for copyright claim, but it can be used as a way to legally protect pd dvds from unauthorised copying. The law does not state that the underlying properties have to be copyright for anti-circumvention to apply, only that content encryption or locking must be present and, of course, there will be some elements on every DVD that are the copyright property of the creator/publisher.

This post was modified by Video-Cellar on 2009-11-30 00:02:50

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Poster: Operateme Date: Jan 18, 2010 9:54am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

This is useful information. thank you so much
http://www.momyweb.com/forums/index.php

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 29, 2009 12:18am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I replied to some of the questions in your other post.

Basic restoration and/or transferring film from one format to another cannot be protected by copyright. Essentially, it is treated the same way as making a photocopy or taking a photgraph of a public domain painting. The process seeks to present the film in an exact copy and does not seek to create a new derivative work.

Even when public domain film is used in a new copyright context, the original PD film itself is not given protection. The original PD element can be lifted and used freely.

US law does not offer copyright protection for the work, labour or technical skill used to restore or transfer a film. This basis of copyright protection is called the "sweat of the brow". In the USA, copyright is only offered to creative work. You can copyright your written instructions for hammering in a nail but not the action itself (hammmering a nail) or the result (a hammered in nail).

In transferring a film there are some processes that can be the subject of copyright. Colorization is one. So is tinting a silent film. In these cases you are making creative choices about colour scheme, etc. Another copyright protected process is panning and scanning (taking a widescreen movie and panning and scanning the frame to create a 4:3 transfer) In this case you are making creative decisions about how to compose the frame and essentially creating a completely "new" derivative work in the process (this is the same in art: take a photo of a 2-dimensional artwork and you have no copyright take a photo of a sculpture or a vase and you do because you've chosen the angle and perspective and created a new derivative 2-dimensional work.)

One of the common misconceptions in archiving, film collection and public domain film distribution is what is sometimes called the "chattel" view of copyright. Because I own the original print I have the right to control all copies of this original print. This is not correct. Copyright is simply intellectual property - the "right to copy". It never extends to the physical product. After the right to copy expires there are no rights that can be garnered simply by virtue of having physical ownership of a print.

So basically, once you restore/transfer a PD film and release it you have just done a great service to the public domain. You can pretend to have copyright, you can believe you have copyright, but you don't have copyright. I can't do anything about a company boxing many of the rare "Sherlock Holmes" films I sell except sell mine cheaper and use the films I didn't have from their box set to return the favour.

This post was modified by Video-Cellar on 2009-11-29 08:18:41

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Poster: billbarstad Date: Nov 28, 2009 9:33am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

If I'm understanding this then, removal of damage caused by use of a film print, and the dust and dirt accumulated over time does not constitute creative work, but digitally processing the images in frames of a film to enhance them is creative since a choice is made in what is sufficient enhancement?

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 29, 2009 12:19am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Yes your this is correct. Cleaning a film doesn't qualify but some digital restoration does. However, if the digital process that is restoring the film is automated it isn't creative. It would take frame by frame manual digital restoration to qualify for copyright protection.

This post was modified by Video-Cellar on 2009-11-29 08:19:24

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Poster: billbarstad Date: Nov 29, 2009 4:55am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Thank you. I really wanted to understand it.

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Poster: Propmaster Date: Nov 28, 2009 3:52pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

no no no...this is all wrong...wow, I'm in awe just to see someone write as advice that copyrights can't do anything...well, lets just hope that what ever they're using is "public domain" and they aren't being misguided by someone who wouldn't know better.....you do know what public domain is???.......it's when the owners rights are cut loose..."according to and only....it's owner".
this is coming from someone who has studied intellectual properties....now, for instance..say I'm an artist,90 yrs old...the studio that I originally did work for went on fire and many of the archives were burned including all the art, except for a few pieces, then the studio folded, although certain people were attached to the studio's name(the owners or the producers)....but they're all dead, or they sold they're shares to someone else through the years, although "YOU" may have one of the last surviving pieces, doesn't make you the owner of the visual...the actual piece, yes.....it doesn't give you the right to reprint or distribute as original either.....the artist may have an estate and you would be pretty surprised the rights artists have........but then again some can care less.

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 29, 2009 5:11am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

"you do know what public domain is???.......it's when the owners rights are cut loose..."according to and only....it's owner"."

No, that is incorrect. The public domain is the body of work for which itellectual property no longer applies. It is true that since 1989 new works have to be expressly dedicated to the public domain, but prior to that many works fell into the public domain due to:
1. Lack of valid copyright notice.
2. Lack of timely registration.
3. Lack of timely renewal at the end of the first copyright term.

Quite often, works by prominent and prolific artists fell into the public domain during their lifetime. All copyrights for works published before 1978 are fixed terms regardless of the author's date of death. The USA did not institute a "life +X years" term calculation until that year, so all works published since then are calculated based on a number of years after the author's death. However, works for hire and works of corporate authorship still have fixed terms of copyright not based on any contributor's date of death.

If the original work was allowed to fall into the public domain the author or the author's estate have no rights except for an expectation of what is called "moral rights." That is, that the work will not be claimed as someone elses original work. However, the law of moral rights is not retroactive and does not expressly give this right to the author of works published before the Berne Implementation Act.

Any underlying artwork in a cartoon is tied to the copyright in the film unless the underlying artwork was:
a) published prior to the film (meeting the formalities required to secure copyright).
b) registered as an unpublished work prior to the publication of the film.
Under these conditions the film then becomes a derivative work based on the copyright artwork.

If a person secures ownership of the last remaining print of a rare public domain film they are free to copy and distribute it however they please.

This post was modified by Video-Cellar on 2009-11-29 13:11:00

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Poster: Ray Pointer Date: Nov 28, 2009 2:37pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Do you have specific interest in the film material that might be of particularly lucrative nature? Do you have some new marketing strategy that might "revolutionize" the process and increase the appreciation of these lost film treasures?

While in theory the PD issue leaves a lot of issue wide open for varying interpretations, these matters may not be as simple and wide open for exploitation as may be assumed here. It is indeed the perogative of an individual who has made the investment of restoring an otherwise orphaned film to register a "new version copyright" on that version, as this is an aspect of copyright law that is recognized and sustained by The Library of Congress. Such new versions can contain restoration work that includes the cleaning up of the film, restoring or re-creating lost or damaged titles, and/or making editorial revisions that include the use of music, sound effects, or subtle editing of content.

It is a mistaken concept to assume that the picture content alone from a "new version copyrighted" PD film is free to exploit since it is this version of the restoration work and editorial content that makes it unique from the original untreated PD film. It is abudantly clear that anyone wishing to exploit a "new version" that contains the investment and labor of someone else is doing so because it is easier than doing the work themselves. But the question is why bother when it's already been done better than the small time profiter whose motivation may be questionable?

So long as the public interested in these old films and cartoons, and knows the reputation of the originator, it stands to reason that they will buy from the source, not a "Johnny-come-lately."

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Poster: Ray Pointer Date: Nov 28, 2009 3:09pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Do you have specific interest in the film material that might be of particularly lucrative nature? Do you have some new marketing strategy that might "revolutionize" the process and increase the appreciation of these lost film treasures?

While in theory the PD issue leaves a lot of issue wide open for varying interpretations, these matters may not be as simple and wide open for exploitation as may be assumed here. It is indeed the perogative of an individual who has made the investment of restoring an otherwise orphaned film to register a "new version copyright" on that version, as this is an aspect of copyright law that is recognized and sustained by The Library of Congress. Such new versions can contain restoration work that includes the cleaning up of the film, restoring or re-creating lost or damaged titles, and/or making editorial revisions that include the use of music, sound effects, or subtle editing of content.

It is a mistaken concept to assume that the picture content alone from a "new version copyrighted" PD film is free to exploit since it is this version of the restoration work and editorial content that makes it unique from the original untreated PD film. It is abudantly clear that anyone wishing to exploit a "new version" that contains the investment and labor of someone else is doing so because it is easier than doing the work themselves. But the question is why bother when it's already been done better than the small time profiter whose motivation may be questionable?

So long as the public interested in these old films and cartoons, and knows the reputation of the originator, it stands to reason that they will buy from the source, not a "Johnny-come-lately."

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Poster: ThePhotoplayer Date: Nov 28, 2009 9:57am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Public domain, trademarked, or not, don't you think it's a bit crass to be ripping off someone else labor?

It's small, mom-and-pop outfits such as this that keep newly restored or discovered material in general distribution. If these guys constantly have their material for sale put up on Archive, how are they going to afford to put out the next release if everyone can turn around and download it for free?

I'm not against posting public domain material, because obviously everyone owns it, but then we get into a morality issue here-- aside from Mr. Prelinger's work, which is undeniably his own, how much of the material on Archive do you think is originally transferred by anyone who posts it? I would be willing to wager very few.

Instead of scapegoating cartoons-on-film, why don't *you* dig up old Kodakscopes and transfer them yourselves, only to find outfits like Alpha and no-names on the convention circuit selling your material.

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Poster: Administrator, Curator, or StaffThe_Emperor_Of_Television Date: Nov 28, 2009 10:11am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Forgive me for asking, but what are these "Kodakscopes" you are referring to? Are they Kodachrome Kinescopes? Or maybe Rifle scopes made by Kodak? I need to know NOW!

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Poster: cartoonsonfilm Date: Nov 28, 2009 12:00pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Photoplayer means 'Kodascopes', which were high-quality 16mm prints made by Kodak of popular subjects for rental in the 1920s thru 40s.

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Poster: Administrator, Curator, or StaffThe_Emperor_Of_Television Date: Nov 28, 2009 12:13pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

OK. That makes sense.

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Poster: Thad Komorowski Date: Nov 28, 2009 1:09pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

>>Public domain, trademarked, or not, don't you think it's a bit crass to be ripping off someone else labor?

It's small, mom-and-pop outfits such as this that keep newly restored or discovered material in general distribution. If these guys constantly have their material for sale put up on Archive, how are they going to afford to put out the next release if everyone can turn around and download it for free?

I'm not against posting public domain material, because obviously everyone owns it, but then we get into a morality issue here-- aside from Mr. Prelinger's work, which is undeniably his own, how much of the material on Archive do you think is originally transferred by anyone who posts it? I would be willing to wager very few.

Instead of scapegoating cartoons-on-film, why don't *you* dig up old Kodakscopes and transfer them yourselves, only to find outfits like Alpha and no-names on the convention circuit selling your material.<<

I need to completely agree with the user here.

Let me also add that we are also talking about a 20 year-old who is putting his own limited time and money into not only the transfers, clean-up, and processing, but also the ACTUAL PRINTS. I assure you that DVD sales do not really recoup the cost. Most of these single prints are in the triple-digits!

I sincerely hope that if you actually want to rip off his hard work to put them up for free on this site that you die.

This post was modified by Thad Komorowski on 2009-11-28 21:09:26

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Poster: Administrator, Curator, or StaffThe_Emperor_Of_Television Date: Nov 28, 2009 12:35pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

How come this above poster can say stuff like "I hope you die", yet everytime I post something, no matter how harmless, I get attacked and insulted?

This is unfair. Everybody can say anything they want except me. Hey, I could post the cure for cancer and I'd still be given a heavy dose of insults and mockery.

I am often amazed by what I *can* and *can't* post on here.

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Poster: cartoonsonfilm Date: Nov 28, 2009 12:51pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

It seems to me like Thad was not addressing you, even though his post follows yours. Notice the delineation of the posts- he is agreeing with Photoplayer and responding to that.

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Poster: Administrator, Curator, or StaffThe_Emperor_Of_Television Date: Nov 28, 2009 1:08pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I never said he was addressing me. I was just being my usual egotistical self complaining about how some other people can get away with posting far worse stuff than I've ever done. For example, every two weeks, somebody (I don't know who) creates another account and gives about 3 or 4 items 2-star reviews each time never talking about the actual content they are supposed to be reviewing. This occurs so frequently that one can set their watch by it. Well, almost.

This post was modified by The_Emperor_Of_Television on 2009-11-28 21:08:38

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Poster: Thad Komorowski Date: Nov 28, 2009 1:10pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Emperor, I was not addressing you with that remark. Or anyone else in particular (OK I'm lying on that one). I just think this thread discussing "Is it OK to rip off some of Stathes's DVDs" reeks of discourtesy, so I'm just going with the flow.

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Poster: yofitofu Date: Nov 28, 2009 6:43pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I think that threatening people with death when they are asking questions about restoration and public domain claims actually says more about the person making the threat than the person being threatened.

My question was a legitimate one, and has nothing to do with all these paranoid ravings, especially from Thad Moronski. I would not post someone's work on this site for free. Nor would I try to be a cartoon archivist as a career. Get over yourselves for just a second and see the bigger picture and the basic innocence of my question.

My question was fairly straightforward, and I think Video-Cellar answered it best, from an un-emotional point of view. Thank you Video-Cellar. A great many strange people came out after you on this thread, however. None has raised any compelling issues about public domain apart from just emotional rantings, however.

My use could well be running some of these clips in the background of a feature film which should not be disclosed. Should I still die for doing something like this, Mr. Moronski? Should I pay a license fee to Mr. Stathe? Or should I just be allowed to use it without a death sentence by just ordering a copy from Mr. Stathe?

What scare people like me is the clearly deranged attitudes of some people on here who might rather make death threats than have a reasonable conversation about issues of public domain.

Very strange group of people.

To Photoplayers assertion that person who "digs up" and transfers the film deserves complete ownership in it, I don't believe the law supports this in any case. Rick Prelinger has done fine transfers and offered them to the world for free. But he keeps the high end clients who need to go back to negative for HD transfers going through Getty. This seems like a reasonable way to make money with your archive while at the same time honoring the concept of Public Domain. And perhaps there is something left over to do additional research.

I'll await the "trackers", the hounds and the death squads.

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Poster: cartoonsonfilm Date: Nov 28, 2009 7:07pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

If your intent was just that, a simple email to me would have gained you some cartoon footage for a feature film. No big deal. I still wonder, though, why this whole discussion had to start.

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Poster: yofitofu Date: Nov 29, 2009 10:28am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Well, for one thing, I was interested in the topic of restoration and whether it constituted public domain ownership in a more general sense. I didn't realize you and some of your friends monitored this forum rigorously. I thought that putting the question out to the general PD public would get a more thorough answer than just contacting you for a specific project. Video Cellar has answered that thoroughly - doubtful if I would have heard from him had I just contacted you.

I would probably not have posted anything had the legal claim on your website not provoked me. It seemed to indicate that you track usage of PD films you have transferred but that you wouldn't pursue legal action against other people who used the PD films after finding their own prints of the films and doing the transfers themselves.

Now, before everyone blows up in anger, I understand and appreciate the hard work archivists do. And it is refreshing to see people renewing a passion for finding and developing and bringing to the public long lost films, prints and transfers. Further, I understand the costs associated with this and would like archivists to be richly rewarded for their undertakings. It seems unfair that an archivists passionate hard work on the films they find could result in someone taking their work and using it without asking permission or paying compensation.

But where I draw the line is in the presumption that the finding and developing of PD materials constitutes some kind of ownership of them. This contradicted my understanding of what the public domain is. My impression is that I can acquire anything in the public domain, remaster it, clean it up, resize, telecine, deinterlace, etc. and then resell it in any way I choose. I can enrich you by buying the materials from you, enrich myself by performing additional improvements and then reselling it if I desire, and enrich the public domain for everyone along the way by making improved materials available to everyone. It was my thinking that this "pass it forward" kind of behavior made for a vibrant and stimulating PD world and a win-win for all people along the way.

What I did not anticipate was that this discussion would devolve into death threats and insulting obscenities because I had brought out this apparently taboo subject. The legalities apart, there are apparently courtesies to be followed in this regard, such as asking the permission of the archivist for what you might intend to do with the PD materials before you order them, and obtaining permission from the archivist in advance for your plans.

While this might seem to constitute an oral or written contract between the archivist and the end user, I guess that's what the public is supposed to do, as a courtesy. From the standpoint of the archivist, this is a respectful approach and defines courtesy in this business. From a legal standpoint, it would seem improper to enter into an oral or written contract with someone over PD materials, or for an archivist to impose restrictions of usage on PD materials they are developing or selling.

There is really no way around the discussion that won't offend the archivist and cause people to think that his hard work and efforts are being devalued. Or lead to paranoid speculation about the person making the inquiry. People immediately jump to the conclusion that the archivists hard work will be sold for $1 on porn sites, sold into slavery or given away on Archive.org.

Perhaps I am wrong, but that is the risk we all take in treasure hunting in the PD. You are uncovering intellectual property that, in spite of your loving care to polish it, catalogue it and preserve it, could be claimed by anyone at any time, thrown into a basement and left to collect dust. Or it could be duplicated and sold in stores for millions, none of which would be due to you. Or it could be put in a museum for the education of children. Or 1,000 other uses. I am not advocating any of this. It is just my understanding of the law - the cold, hard facts....

The point being is that after you find it, and then sell it, you really can't control what happens next. You have been compensated monetarily by selling it - once - if you are fortunate. Your only further compensation is to see it enjoyed, and, yes, even exploited by others, in the vast resource of the PD.

I am open to reasoned and thoughtful - and UNEMOTIONAL - responses to this, because I am trying to understand if there is an error in my thinking here. I welcome a reasoned discussion.

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Poster: cartoonsonfilm Date: Nov 29, 2009 11:38am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Hi Yofitofu,

There is nothing wrong with your perception of the P.D. as you explain it. I could be wrong, but I think what happened here was this:

You brought up a very valid discussion, the points of which were further explained by Video Cellar. Again, the text on my website was given to my web designed by a third party while I was unavailable to help with the creation of the site. It has now been changed since after reviewing it thanks to this topic, I don't think it properly reflected my operation and the spirit of the public domain.

I have indeed been emotional, as this questioned my personal activity, and I will not apologize for being defense and protective of my work. There was nothing wrong with your bringing up this topic. Though upon revealing that you had some commercial interests, a person like myself could interpret the worst, especially if the interest is ambiguous. If, let's say, you were simply going to use some of my PD footage in a feature film, that would be something I would love to assist with, and I still welcome you to contact me privately.

I completely understand the situation from your point of view and think you understand my position, too, since you are vocally supportive of archivists. I think the ambiguity in your interests is what caused some panic, even if you are entitled to do what you were considering doing.

Tom

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Poster: Thad Komorowski Date: Nov 28, 2009 7:39pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Hey, no death threats, just saying something that needed to be said about some asshole trying to defame a close friend. And at least I post under my real name. Who's the moron?

This post was modified by Thad Komorowski on 2009-11-29 03:39:00

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Poster: k-otic Date: Nov 28, 2009 2:32am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Question is ... are those toons really in the public domain ?!... as far as i can remember it .. i own approx 50/100 short toons, 2 to 10 minutes long, from 1915 to 1939
i never touched them because they are so many

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 28, 2009 7:54am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

There are many there that are suspect copyright-wise

All the Disney stuff except for the laugh-o-grams
Willis O'brien's CREATION was unfinished and unpublished for many years. It is in no way PD.
There are only a few MUTT AND JEFFS that are genuinely PD
Most of the Bray stuff is copyright
Only the pre 23 and a few later Felix ones are PD.
Not many of the PAUL Terry ones listed are actually PD.

I would guess that 5-10% of what is listed on that page is public domain.

And what about this poster. The trademark lawyers would have a field day with this.

http://cartoonsonfilm.com/carnivalposter.jpg

This post was modified by Video-Cellar on 2009-11-28 15:54:07

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Poster: cartoonsonfilm Date: Nov 28, 2009 8:32am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Hello Everyone,
Unfortunately I only have a couple minutes to address some of the concerns in this thread. I'll start with the last post.

Walt Disney's 1923-1926 Alice Comedies were distributed by M.J. Winkler, who was infamous for never copyrighting the films she distributed. There are no copyright records for these, and the Krazy Kat shorts she also handled. Likewise, there are no copyright records for the Mutt & Jeff cartoons. This was all confirmed by me on a visit to the Library of Congress' Motion Picture Reading Room.

The Bray Studios existed in some form or another until 2008, when the last remaining stock of the corporation was overturned as the last surviving owner donated the studio effects to the Library of Congress. Again, this was confirmed through another visit to the Library.

I am curious how many of the commenters here actively work with PD or "orphan" films which are no longer being commercially exploited...in many cases, not for the past 50+ years. When I was researching these films at an early age, it was highly frustrating to see images from them in books and not find the films for actual viewing. There seems to be a general consensus and 'thanks' from researchers for now being able to see them, and it's unsure to me if the posters here share that sentiment. Is it better for these films to stay hidden for decades, even if their copyright situation is murky at best?

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Poster: yofitofu Date: Nov 28, 2009 10:59am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Tom,

I initiated this post, so I will try to clarify my question and my position. I applaud you for your passion in finding and transferring these rare animations to video. Your work is laudable and I seriously intend to order quite a few of them from you shortly to help support your efforts financially. You clearly have a passion for your pursuit and it shows.

However, I want to make it clear that if I order these films from you, I am under no obligation to you in any way as to how I use them, provided they are verifiably in the public domain (many on your list are not). Thus you can claim "ownership" of the "restorations" of these films on your site, http://cartoonsonfilm.com/disclaimer.html, but it is not enforceable in any way, unless you can show me which aspects of the work you have creatively altered to make them unique and copyrightable.

I could post them on Archive.org if I wanted to, but I won't as I have a different commercial application for them, but again the only profit you can make off of them is in the initial sale of the DVD to me. That's the nature of the PD marketplace. If there are others reading this post who disagree with me, please let me here from you, because this is the assumption I make and have always made about PD.

My second concern is that, as another person pointed out, you have quite a few titles offered which clearly have renewed their copyrights. My Bible on this is the Film Superlist 1894-1939 by Walter Hurst (a $600 investment but well worth it) which reprints all copyrights on every title ever registered during this time period and whether or not they were renewed. This book is a more efficient, handy and reliable authority than even a visit to the Library of Congress.

US films before 1923 are generally considered PD, but many after 1923, like most Felix The Cats, Koko and Paul Terry (and quite a few others on your list) are shown as having their copyright renewed. My intent here is not to dampen your enthusiasm or keep these films away from the public eye, but to protect you from a copyright infringement suit at some point in the future - which is not unlikely when you are dealing with Disney titles....and others. Please check out this invaluable book to determine which of your titles are yours to resell.

So, as I said, I do intend to support you with an order shortly. Please let me know if you disagree with my position that your public domain materials are mine to do as I choose with once I have paid you to deliver them to me on DVD.

Thanks. Yofitofu.

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Poster: cartoonsonfilm Date: Nov 28, 2009 11:35am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I think you're treading into an area of human courtesy with the book of law in hand. Now that you have made it known that you have some commercial interest in these films, I can only wonder and will publicly ask- what is your intent? Others have reused the films that I make available, and usually with my assistance... because I am involved in this field on a daily basis and stay in touch with most individuals who buy my material (a level of intimacy most corporate DVD outfits cannot pursue).

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Poster: yofitofu Date: Nov 28, 2009 12:15pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Actually, I'm not being discourteous. On the contrary, I am trying to be decent by coming to you with a checkbook, not a lawbook in hand. My problem was with the legal notice you posted on your site, which seemed to claim that you had done "restorations" on these materials which gave you some claim of copyright in them. I'm just asking you to explain what you mean by that since the only legit claims for this that I know of are "colorization", "pan and scan" and copyrightable music. I didn't want you to feel bad if they were ordered from you and used and shared and resold widely, like the Prelinger materials are.

I don't feel compelled to put my business plan in writing in a public forum, but suffice it to say that it doesn't involve selling DVD compilations which would directly compete with your enterprise with these PD materials, although I presume others could do this should they desire, which is a risk you take when you make them available to the public.

I can understand that as an archivist and lover of these films, you feel a deep attachment to them and a sense of ownership of them. You have worked hard to bring them to the public and it seems unfair that anyone could just take them and also use them with a $20 fee to you. It is inherent in the phrase - "because I am involved in this field on a daily basis and stay in touch with most individuals who buy my material" - but I think it is important to understand that, respectfully, Public Domain materials are not your materials. They belong to the public and you cannot control other individual's ability to copy them (the copyright). You can copy them freely and resell them and so can anyone else who buys them from you. Your profit is in the initial sale of them, not in the ongoing control and administration of what happens to them after they leave your hands. This may seem harsh or legalistic, but it is a fundamental aspect of the public domain as I understand it.

So can you say what kind of restoration work you have done on these cartoons which makes them your exclusive property to enforce copyright on?That's my fundamental question which started this thread.

Thanks. yofitofu

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Poster: cartoonsonfilm Date: Nov 28, 2009 12:54pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I do understand that you are trying to be courteous, but then again, you did not contact me directly. Instead you have started a public discussion, which is fine, and it may have gone on without my noticing it- at a loss to me.

My questioning your business plans were akin to your asking for me to publicly state some of the technical sides of this endeavor. In both areas, some of these things are not topics the public are privy to and this is to protect those individuals working with the material, just as it would be a protective measure for a business person not to post his or her business plan on the internet.

While it is true that I do not "own" said material in a copyright sense and that buyers can copy the material is a moot point. Some have done this, tried replicating my operation and did not catch on for a simple reason. They are not the same multi-faceted individual making connections with other collectors, archives, researching, or doing many of the other things necessary to really be recognized in the preservation field. They indeed wrote a check and tried recouping their loss and I'm sure in time they realized that they could not start being a person like myself just by doing this. I am not going anywhere and will continue to be an active figure in this niche so long as I am breathing. The same cannot be said for those copycats I've encountered.

Like you said, I cannot control the films once they are purchased by someone. But to have them become profitable outside of my hands, if at all possible, would put a direct financial damper on my ability to locate more of these films. That is the most important task, here, and anyone who wants to attempt the same would be directly competing with me. You are also not buying the original prints in this case. Why try to reinvent the wheel?

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 28, 2009 3:39pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

I am heavily involved in the use, restoration and release of Public Domain films, even releasing otherwise "lost" films. This is my business.

In using public domain material, I understand that I have no legal basis to claim rights on the public domain content that I use. I can claim rights on new material I create (tinting, musical arrangements, pans and scans, etc) just not the original work, no matter how much painstaking work I have done. I have still only copied the original work and there is "no copyright in a copy of an expired work" (and the law is not grey on that).

I know that the minute I list my new transfer of X movie that I spent 6 months preparing I am opening it up to commercial exploitation. I can ask nicely for other people not to use it, but I can't enforce the request, so I don't bother asking. Ever major US PD distributor has 'borrowed' my work. It sometimes annoys me that I didn't get paid beyond the sale price of the DVD. But I just deal with it. It is the business I have chosen and thats just how it works. All I can do is undercut them or give the film away for free.

I agree with you that an individual's decision to use the product of a person's hard work is a matter of decency. But where there is no law to guide or enforce acceptable use, there is no way to control the use of your work. It is also a matter of decency whether or not the vendor misguides their customers as to the rights held in the work. Some legislation is made about this in the US and most other countries. It is usually referred to as "copyfraud." Its no more decent to misguide your customer into what legal rights you actually have as it is for them to exploit your work without credit.

Below is my standard disclaimer which attempts to be far more accurate in terms of the rights I hold in my DVDs and not to misguide my customers:

"Video Cellar DVDs are independent public domain releases. Our DVDs are made using the highest quality DVD recording media and are professionally mastered using the best available film prints. These DVDs are presented in a quality hard plastic DVD case with full colour insert. These items are sent cellophane wrapped.
We do not sell Bootlegs or counterfeit DVDs. We sell DVDs mastered with precision, care and quality from the best possible sources. We know you will enjoy viewing the classic films that we are making available through our DVD label and ebay store.
All of our films have been thoroughly researched and their public domain status has been determined. Our DVDs are produced in accordance with the Copyright Acts 1912, 1968 and Copyright (International Protection) Regulations (British films made available in accordance with Schedule 1.12(2)(e) of the UK Copyright Designs and Patents Act, 1988) from prints held by the Video Cellar archives. Enhanced images from the original public domain films or original public domain posters are used in cover art. Due to the age and archival nature of the film prints used, there may be some fluctuations in image and sound quality. Every care has been taken in transfering these decades old prints to DVD. Any minor imperfections present should not effect your enjoyment of the film.
Date of Publication: 1941-1943 Country: USA. Copyright not renewed. DVD released in Australia in accordance with Copyright (International Protection) Regulations. Any Trademarks used in this item listing are used for strictly descriptive purposes only. No association or endorsement is implied or inferred.
Cover Design, Menus, Artwork and Editorial content COPYRIGHT 2008 The Video Cellar, Australia."

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Poster: cartoonsonfilm Date: Nov 28, 2009 4:26pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Thank you for your wise insight, Video-Cellar. I completely agree with all the points you make. I must also mention that the explicit ownership wording was supplied to me by a third party while I was having my new website made. I am no web designer and did not control this aspect directly, and will see to it that it is changed. This wording was not on my former website which had been online since 2005.
But I do thank you for your comments on decency. I think we see eye to eye on this even though the explicit wording on my website is what seems to be part of the cause for this thread. I do not mean to mislead anyone and am simply looking to protect my work, maybe in more of a vocal manner than you are.

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 28, 2009 4:41pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Thanks, It is nice to see other young people in this business and doing it the right way. So many people are just buying a mill creek 50 pack to start a PD DVD business these days.

I am 28 and have been collecting films since I was in high school. I started a DVD transfer business 5 years ago which morphed into the DVD label when I mastered DVD authoring.

If I can give one bit of advice. When your using "orphaned" works as opposed to PD works keep as much documentation as you can for your searches for copyright owners. This will be your main protection in the unlikely event that someone ever claims copyright on the film. And you should change your road show poster. Disney and WB are very precious about the use of their trademark cartoon characters. I got a letter from Disney when I had a dvd with a rare "Uncle Tom" cartoon which has some Mickey-like character modelling, claiming trademark infringement for the still on the cover. If you don't do what they ask they will keep you in legal paperwork forever.

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Poster: cartoonsonfilm Date: Nov 28, 2009 4:57pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Thanks for the kind words. Nowadays my poster only hangs in my home, I no longer use it when giving shows.

I have dealt with Disney's archive which bought some of my collections before obtaining their own film print materials of certain titles I have. Perhaps this has delayed their otherwise litigious nature.

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Poster: yofitofu Date: Nov 28, 2009 7:09pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

And I would say about "decency" that I had no idea what I considered an innocent question about PD and cartoonsonline would explode into these magnificent proportions, involving death threats, insults and accusations. I can appreciate what Mr. Stathe is doing. I just didn't like his legal wording. So I apologize for not just contacting cartoonsonline directly. I thank Video Cellar for his balanced words. Clearly there is some kind of giant PD DVD distribution business I was completely unaware of, and could have died for the cause.

Very strange group of people indeed.

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Poster: cartoonsonfilm Date: Nov 28, 2009 7:14pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Strange? Yes, in some ways. Though, the word strange only signifies unfamiliarity. Again, we both could have avoided headaches if you would have contacted me directly, as many have in the past for similar uses. Museums show my films and they have appeared for free at charitable events. My website has been revised now thanks to Video-Cellar's suggestions. What I will say though, is it's best to learn about a specific field by talking to the people operating in it rather than skirting the circles to start a conversation outside of the loop. This only invites assumption and uninformed voices.

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Poster: ramapith Date: Nov 28, 2009 10:31am
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

As regards recopyrighting restored versions of films—to the best of my knowledge, it has no effect on the basic copyright status of a given film. It merely ensures that the *restored* version can't be reused by somebody else.

Theoretical example: I take an average public domain cartoon: let's say the 1924 Alice Comedy ALICE GETS IN DUTCH. I transfer it freshly to video from a 16mm copy, "restoring" it: electronically cleaning it up and repairing damage to certain frames, etc. I add new music, either recorded myself or taken from a public domain, pre-1923 source.
Then I copyright my restoration of ALICE GETS IN DUTCH. This means no one else can use it...

BUT if Joe Shlabotnik down the street has his own 16mm print of the cartoon and decides to restore, re-soundtrack and release it himself, I can't stop him. When the basic source element is in the public domain, the most I can do is protect my own version.

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Poster: gestroud Date: Nov 28, 2009 1:48pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

This is getting confusing.

Is the original question:

If A

1. Takes a public domain work and does some enhancements/restorations on it,
2. Adds his/her credits to it (Copyright John Doe's DVD Restoration),
3. claims exclusive ownership of the "new" work,
4. Sells it either separately or as/with part of a similar collection of Public Domain works,

can B legally

1. Purchase it,
2. redistribute it for free or for profit - either in part, as a whole or part of a new collection

because,

A's legal claim of ownership either
1. has no legal standing,
2. isn't in the spirit of public domain,
3. enters into a gray area?

-------------------------------

Sorry for sounding clueless, but I started going cross-eyed 3/5ths of the way into the thread. :-(

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Poster: cartoonsonfilm Date: Nov 28, 2009 2:20pm
Forum: feature_films Subject: Re: What is a 'restoration' and is it grounds for ownership of PD materials?

Gestroud, this is a bit of a grey area as you suggest. In response to your "2. isn't in the spirit of public domain", person B would be no more or less abiding by the 'spirit' of Public Domain by doing the same as person A, whether for free or for profit. When you're referencing the 'spirit' of the public domain, you're dealing with the implied etiquette of a system where the original PD works have no enforceable rights held by a party. I'm not necessarily referencing some of the films I have with this following statement, but one must understand that while copyrights on certain films may have been initially renewed, the rights holders are in many cases deceased individuals or defunct corporations. Their rights, then, are not enforced or unenforceable. Rights are almost meaningless unless they are being upheld, just in the same way that people who are able to vote for public officials forfeit that ability by remaining dormant.